62 d Congress. 


)t> Congress, 

Session . 


SENATE. 


j Re 
1 No, 


Report 
No. 800. 


ELECTORS FOR PRESIDENT AND VICE PRESIDENT. 


May 27, 1912.—Ordered to be printed. 


/uSj 

u 

Mr. Root, from the Committee on the Judiciary, submitted the 

following 


ADVERSE REPORT. 


[To accompany S. J. Res. 98.] 


The Committee on the Judiciary, to which was referred Senate 
joint resolution 98, being a resolution which undertakes to fix the 
number of presidential electors which the several States shall have 
in the next and ensuing presidential elections, have considered the 
same and report adversely thereon for the following reasons: 

The effect of adopting such a rule would be to determine the number 
of electors to which each State is entitled by reference to the census 
of 1900 and the population which the State had at that time, instead 
of fixing it by reference to the last census, taken in 1910, and the popu¬ 
lation which the State now has in accordance with that last census. 

In our opinion, no such rule is provided or permitted by the 
Constitution: 

The Constitution declares: 

Article II, section 1, paragraph 2: 

Each State shall appoint, in such manner as the legislature thereof may direct, a 
number of electors equal to the whole number of Senators and Representatives to which 
the State may be entitled in the Congress. 

Article I, section 3, paragraph 1: 

The Senate of the United States shall be composed of two Senators for each State. 

Article I, section 2, paragraph 1: 

The House of Representatives shall be composed of Members chosen every second 
year by the people of the several States. 

Article I, section 2, paragraph 3: 

Representatives and direct taxes shall be apportioned among the several States 
which may be included within this Union, according to their respective numbers, 
which shall be determined by adding to the whole number of free persons, including 
those bound to service for a term of years, and, excluding Indians not taxed, three-fifths 
of all other persons. The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within every subsequent 




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ELECTORS FOR PRESIDENT AND VICE PRESIDENT. 


term of ten years, in such manner as they shall by law direct. The number of Rep¬ 
resentatives shall not exceed one for every thirty thousand, but each State shall have 
at least one Representative; and until such enumeration shall be made, the State of 
New Hampshire shall be entitled to three; Massachusetts, eight; Rhode Island and 
Providence Plantations, one; Connecticut, five; New York, six; New Jersey, four; 
Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North Carolina, 
five; South Carolina, five; and Georgia, three. 

The fourteenth amendment, section 2: 

Representatives shall be apportioned among the several States according to their 
respective numbers, counting the whole number of persons in each State, excluding 
Indians not taxed. But when the right to vote at any election for the choice of elec¬ 
tors for President and Vice President of the United States, Representatives in Congress, 
the executive and judicial officers of a State, or the members of the legislature thereof, 
Is denied to any of the male inhabitants of such State, being twenty-one years of age, 
and citizens of the United States, or in any way abridged, except for participation in 
rebellion or other crime, the basis of representation therein shall be reduced in the 
proportion which the number of such male citizens shall bear to the whole number 
of male citizens twenty-one years of age in such State. 

Under these provisions the relative proportion, as between the 
States, of their Representatives in Congress and in the electoral col¬ 
lege is fixed absolutely by the Constitution upon the determination 
of a fact; that is, upon the determination of the respective numbers 
of persons in each State, excluding Indians not taxed. The Con¬ 
stitution commands this determining fact to be ascertained by an 
actual enumeration to be made within each term of 10 years, and 
further commands that Representatives shall be apportioned among 
the several States according to the numbers so ascertained. Con¬ 
gress has performed the duties thus imposed upon it by the Consti¬ 
tution. By the census of 1910 the respective numbers of persons in 
each State have been ascertained, and by the act of August 8, 1911, 
entitled “An act for the apportionment of Representatives in Con¬ 
gress among the several States under the Thirteenth Census,” Rep¬ 
resentatives have been apportioned among the several States in 
accordance with the number of persons thus ascertained. 

It seems clear that when these duties imposed upon the Congress 
by the Constitution had been performed, each State became entitled 
by force of the Constitution to the number of Representatives thus 
apportioned to it and to the number of presidential electors equal to 
the number of its Senators and Representatives so apportioned. 

It seems equally clear that it is not competent for Congress to take 
away, modify, or change that constitutional right. 

The argument in favor of the resolution now under consideration 
Is that because the old Congress, elected two years ago, under the old 
apportionment based on the census taken 12 years ago, will still be in 
office at the time when electors are chosen in November next the 
numbers of Representatives in that Congress are to be the guide in 
fixing the nuniber of electors instead of the numbers to which the 
States are entitled under the new enumeration and apportionment 
already made under the mandate of the Constitution. This can not 
be, because the fact that the old Congress will still be in office at the 
time of the presidential election is a matter not of constitutional 
requirement but of congressional arrangement, and Congress can not 
by arranging the terms of Congress take away from the States their 
rights to proportional representation in accordance with their num¬ 
bers under the provisions of the Constitution. 





ELECTORS FOR PRESIDENT AND VICE PRESIDENT. 


3 


That the holding over of the old Congress at the time of a presi- 
^ dential election is purely a matter of congressional arrangement ap- 
. pears by an examination of the Constitution, which provides, in the 
second section of the article above cited, that the Representatives 
shall be ‘ ‘ chosen every second year by the people of the several States,” 
but does not provide when they shall be chosen or when their terms 
shall begin and end. These matters are expressly committed to 
Congress. The Constitution provides: 

Article I, section 4: 


The times, places, and manner of holding elections for Senators and Representatives 
shall be prescribed in each State by the legislature thereof; but the Congress may at 
any time by law make or alter such regulations, except as to the places of choosing 
Senators. 

The Congress shall assemble at least once in every year, and such meetings shall 
be on the first Monday in December, unless they shall by law appoint a different 
day. 


Article II, section 1, paragraph 3: 

The Congress may determine the time of choosing the electors, and the day on 
which they shall give their votes, which day shall be the same throughput the United 
States. 

It thus appears that while the Constitution fixes expressly the 
rights of the States to their proportional numbers of Representatives 
and electors, according to their population as ascertained by the 
decennial census, it leaves the Congress to determine when the 
Representatives shall be elected and when they shall meet and when 
the electors shall be chosen and when they shall meet. Congress 
can, in the exercise of its discretion for the arrangement of these 
various dates, provide that the Representatives under the new appor¬ 
tionment shall be elected and shall meet before the electors are 
chosen or after the electors are chosen, but it can not be consid¬ 
ered that the arrangements which Congress sees fit to make for the 
convenience of the country and the dispatch of public business in 
regard to the times when these elections and meetings shall take 
place control the rights of the States to that proportional representa¬ 
tion which the Constitution itself has given to them. 

The controlling consideration in construing the provisions of the 
Constitution which relate to this subject must be the perfectly plain 
intent of the Constitution to give to each State a share in the selec¬ 
tion of the President proportionate to its share of the population 
of the country. This is the natural and just rule and there is no 
room whatever for doubt that this is what the Constitution intended. 
No construction which frustrates this intention should be permitted. 
The intention can receive effect only by giving to each State the 
number of Representatives and electors which are proportionate 
to its population at the time when the choice of the people for Presi¬ 
dent is expressed, that is to say, in proportion to the population as 
ascertained by the last census preceding that expression. 

The rule proposed in the pending resolution would overturn the 
established practice of our Government from its foundation. 

The first apportionment of Representatives was made by the Con¬ 
stitution itself in Article I, section 2, paragraph 3, above quoted. By 
the express terms of the article that constitutional apportionment was 
to last only until the first enumeration should be made. Accordingly, 




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ELECTORS FOR PRESIDENT AND VICE PRESENT. 

when the first census had been taken, in 1790, there was a new appor¬ 
tionment, and in the presidential election of 1792 the number of presi¬ 
dential electors in each State, as well as the number of Representatives 
to be elected from that State, was based upon the population shown by 
the census of 1790. In every presidential election from that time to 
this the same rule has been followed. In every case the number of 
electors was equal to the number of Senators and Representatives to 
which the State was entitled under the last apportionment and not 
equal to the number to which the State had been entitled under the 
preceding apportionment, even though the old Congress elected under 
that preceding apportionment was still holding over. The rule 
declared in the act of March 1 , 1792, which is now embodied in section 
132 of the Revised Statutes, was as follows: 

The number of electors shall be equal to the number of Senators and Representatives 
to which the several States are by law entitled at the time when the President and Vice 
President to be chosen come into office; except, that where no apportionment of Rep¬ 
resentatives has been made after any enumeration, at the time of choosing electors, the 
number of electors shall be according to the then existing apportionment of Senators 
and Representatives. 

_ The committee has no doubt that this construction of the Consti¬ 
tution, which has now stood as the expression of the understanding 
of Congress for 114 years, is correct, and recommend that the resolu¬ 
tion do not pass. 


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